Complicated Legal Proceedings arising from a Parking Lot Accident

Parking lot accidents follow different rules than public roads and highways, in terms of finding fault and liability.  Ontario traffic regulations under the Highway Traffic Act generally do not apply in private parking lots, although Criminal Code violations, such as driving while impaired and dangerous driving can be brought against drivers who break any criminal laws while driving on private property. 

A recent trial to determine liability and insurer indemnity in a parking lot accident addressed some of the complicated issues that may arise in these venues.  The action arose when a pedestrian was hit by a car in the private parking lot of a strip mall in Toronto, which resulted in a civil suit brought by the injured pedestrian against the defendant driver and the plaza owners.

The accident occurred when the defendant driver, Ms. Becamon, accidentally put her foot on the accelerator rather than the brake pedal, which caused the car to surge forward and pinned a pedestrian to a wall. As a result, the pedestrian, Mian Daud Shah, suffered substantial injuries, including multiple fractures to his legs.

At the time of the accident, Ms. Becamon held only a G-1 licence and was not accompanied by someone holding a G-2 operator's license.  Therefore, she was not properly licenced to drive.  Although she had vehicle insurance under Wawanesa Mutual Insurance Company, a condition of the policy is that she should not drive the car as long as she remains an unlicensed driver.

Ms. Becamon, brought a third party claim against Wawanesa claiming that they have a duty to defend her action and provide her with adequate coverage.  She argued that Wawanesa was wrong to deny her coverage because the accident occurred on a private parking lot, not a ‘highway’ within the meaning of the Highway Traffic Act.  Wawanesa, on the other hand, argued that when someone drives a vehicle without being authorized by law to do so, they are in breach of a condition of the policy and therefore, under the Insurance Act, section 251(1), are entitled only to a maximum of $200,000 against liability resulting from bodily injury, death or property damage (rather than the $1 million limit available under her vehicle insurance policy, had she been authorized to drive).

In Shah v. Becamon, 2007, the plaintiffs, Mian Daud Shah and family members, sought to sever the third party claim between the insurer and Ms. Becamon from the ‘main action’ between the plaintiff and the defendants, before the main action to determine liability and damages is heard. 

The judge in Shah believed, based on known medical information, that the plaintiff’s losses and damages would likely exceed $200,000, considering loss of income, cost of care and loss of competitive advantage.  Yet, if it is determined that there is no insurance coverage available beyond the $200,000, which may be the finding of a future action, no monies beyond the $200,000 would be available for the plaintiff unless they pursue a claim for additional payments.

The plaza owners were also named as defendants in the suit because the plaintiff alleged that the parking lot curbs were of insufficient height to stop the car from sliding over them and striking the plaintiff.  The curb met building specifications when the parking lot was built, but the current specifications now require curbs to be higher.  However, it was the judge’s opinion at this point in the litigation of this case, that it is unlikely that the owners will be found liable, given that specifications were met when the parking lot was constructed.  The owners’ insurers also communicated an unwillingness to contribute to the settlement.  Unfortunately, if the action is not bifurcated (split), the owners would be forced to participate in a lengthy jury trial, after which, in all likelihood they will be released from the action.

The Courts are normally reluctant to split a trial; however, the judge in this case deemed that a bifurcation of trial is the fairest approach, and could prevent the mall owners from having to incur significant expense defending an action in a jury trial, when it is unlikely that they will be found liable.  Therefore, the judge ruled that the third party claim to resolve the coverage question should be tried separately before the issues in the main action.

In the subsequent action, Becamon v. Wawanesa Mutual Insurance Company, 2009, the Ontario Court of Appeal considered whether Wawanesa was obligated to insure Ms. Becamon.  Wawanesa, her insurer, argued that because she violated her G-1 licence restriction by driving without a licensed driver and had, in fact, pled guilty to a charge of driving without being accompanied by a qualified driver, she breached a Statutory Condition 4(1) in the Standard Automobile Policy. The insurer also argued that the plaza where the accident occurred constitutes a ‘highway’ under the Highway Traffic Act.

Prior to these proceedings, Ms. Becamon had pleaded guilty to the Highway Traffic Act offence and paid the associated fine. However, the judge in this case did not believe that this constituted an admission that her actions were not lawful under the statutory condition. The judge asserted that because the negligence or loss of control occurred entirely on the plaza parking lot, which is private property where the Highway Traffic Act has no application, Ms. Becamon did not need authority to drive there and did not breach the statutory condition.  Under the Act, a “highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof. Further, the locations that are defined as a ‘highway’ under the Act are qualified by the descriptors ‘common and public’, which conflict with the general use for the plaza as a parking lot for customers.   

In his decision that the defendant’s guilty plea for the criminal offence should have no bearing on her civil trial, in the interest of fairness, the judge also took into consideration the fact that Ms. Becamon had difficulties with the English language and further, was not represented by counsel.  For all of the above reasons, the Ontario Court of Appeal dismissed Wawanesa’s appeal of the trial judge’s decision, finding that Ms. Becamon did not, in fact, breach the Highway Traffic Act by driving on a ‘highway’ when not properly licenced to do so and correspondingly, was not in breach of the statutory condition.  These findings mean that the insurer is obligated to insure and also, defend the defendant in the main action to resolve this claim.

If you were injured in a parking lot accident or another incident resulting from a driver's negligence, call an experienced Toronto car accident lawyer to find out about your legal rights in the matter.